WHAT IS THE EVICTION PROCESS AFTER

A FORECLOSURE SALE?
Bruce Dannemeyer and Lawrence J. Dreyfuss
The Dreyfuss Firm, plc
7700 Irvine Center Drive, Suite 710
Irvine, California 92618
(949)727-0977
larry@dreyfusslaw.com
EVICTION AFTER FORECLOSURE
What happens after foreclosure? How long can someone stay in the house? What is the
eviction process?
NOTICE TO QUIT
After foreclosure, the new owner begins the process of getting possession of the home by
serving on the resident a Notice to Quit and a cover sheet with language specified in
Code of Civil Procedure section 1161c. The length of notice depends on who occupies
the home. The notice lengths are:
3 days:

The resident was the borrower.

90 days:
All residents are tenants, subtenants, or their family.
Longer than 90 days:
Under certain circumstances, the tenant of a foreclosed home can
remain in the home for the remaining length of the lease, no matter
how long that is. A tenant has that right to stay only when:
o The lease was entered into before the foreclosure sale.
o The lease is a bona fide, arms length lease.
o The tenant is not the borrower or the child, spouse, or parent of
the borrower.
o The rent is not substantially less than fair market rent (except
when the rent is subsidized or reduced by law).
o The tenant continues to pay the rent specified in the lease.
However, the tenant cannot stay for the remainder of the lease, if the
person who acquired the home at the foreclosure sale will occupy the
home as a primary residence. In that case, the tenant can stay a
maximum of 90 days.

A post-foreclosure notice is different from the notice used in the common eviction
scenario when rent is not paid, which must give an option: pay rent or move out. A postforeclosure notice contains no such option. With certain possible exceptions in rent
control properties, even a rent-paying resident must move out if the new owner wishes.
The only question is the length of time the notice provides. The days are calendar, not
business days, except that if the last day falls on a weekend or holiday, the period is
extended to the next business day.
SERVICE OF NOTICE
The notice may be served any number of ways. It is not necessary that the resident be
handed a copy of the notice. It may also be served by (1) posting (i.e. taping) a copy to
the door and then mailing a copy to the home or (2) leaving a copy with someone over
the age of 18 at the home, then mailing a copy. Those methods may be used so long as
the owner first tries to serve the notice personally on the resident at least once.
UNLAWFUL DETAINER LAWSUIT
After the period in the notice has run, the owner may file a lawsuit to evict. The
document that begins the lawsuit is called a complaint. The new owner must pay the
court a filing fee ranging from $240 to $450 (depending on the court) in order to file the
complaint. When the complaint is filed, the court will issue a summons, which warns the
person being sued (called the defendant) that he or she has 5 days after being served
with the paperwork in which to file a written response with the court and to mail
(serve) a copy to the attorney or party who filed the complaint.
SERVICE OF THE LAWSUIT
Service of the lawsuit is similar to service of the notice. Personal delivery must be
attempted first. If personal delivery is not possible after a few attempts, the lawsuit may
be left with someone over the age of 18 at the home, and then a copy mailed to the home.
However, personal delivery must be attempted with reasonable diligence before this
method may be used. If no one can be found at the home, the owner can obtain a court
order allowing service by posting the paperwork on the home. Serving by means other
than personal delivery gives the resident an additional 10 days beyond the normal 5 days

in which to serve the response and file it with the court. It also is a good idea to serve a
Claim of Right to Possession along with the lawsuit so that all occupants, even someone
not know to the owner and not named as a Defendant, can be evicted.
DEFAULT
If the deadline to respond is missed, the new owner may request that the court enter the
default of the resident. The owner may then request a court order that gives the owner
the right to evict the resident. The court may also award the owner money damages
consisting of the fair rental value of the property from the date of the foreclosure sale, as
well as court costs. The owner generally will not be reimbursed for its attorneys fees.
TRIAL
If the resident files a response with the court by the deadline, the owner then needs to ask
the court to set a date when trial will take place. Usually the trial will be within 20 days
of the request. At trial, the owner needs to prove that he is the owner of the home, that
the resident was served with the notice, and that resident remains in possession of the
home. A former borrower has very few available defenses. A genuine tenant may have
more defenses.
EVICTION
After the court enters judgment for the new owner, whether by default or after trial, the
court clerk issues paperwork that is given to the Sherriff for service on the resident. The
Sheriff charges about $100 to serve the paperwork. That paperwork states that the
Sheriff will return in 5 days, at which time the resident must be out or else the sheriff will
evict him. Once that period runs, the owner may change the locks. If the resident
returns, he risks being arrested for trespassing.
RESIDENTS NOT NAMED AS DEFENDANTS
The court judgment will be against the defendants, and will even include other residents
not named as defendants if the owner serves, together with the lawsuit, a Claim of Right
to Possession. A non-defendant resident must complete that form and file it with the
court in order to participate in the lawsuit and attempt to fight eviction.

PERSONAL BELONGINGS
If the resident leaves furnishings or other belongings in the home, the owner may move
them or store them in place, but cannot dispose of them without first giving the resident a
notice stating that the items will be thrown out or, if they are worth at least $700, sold at
auction, unless the resident picks them up within 18 days and pays the reasonable cost of
their storage.
APPEAL
The resident may appeal from the judgment, but filing the appeal will not stop the
eviction unless the court specifically so orders. Also, the resident must pay into the court
the fair rental value of the home while the appeal is pending.
ALTERNATIVES
Some owners are willing to pay the resident to move out voluntarily. This is sometimes
referred to as cash for keys. The amount is not set by law. The owner does not even
have to offer anything. Bankruptcy is another alternative. If the resident files
bankruptcy, the owner needs to obtain bankruptcy court permission to complete the
eviction.
LENGTH OF PROCESS
The eviction process can be a matter of days if the resident and owner reach a cash-forkeys agreement. It can last several months if the court is slow in processing paperwork
and the owner is not very diligent. Most of the time it takes 30-60 days.
This is a general overview. Call for an appointment if you would like to initiate an
eviction or have your particular situation evaluated for possible defenses.
Lawrence Dreyfuss and Bruce Dannemeyer are associated with The Dreyfuss Firm, a
professional law corporation located in Irvine, California. Collectively they have well
over 50 years civil litigation experience. They handle cases throughout California in
state and federal trial and appeals courts concerning real property transactions and non-

disclosures, secured lending and foreclosures, title problems, partition of jointly owned
property, broker liability, contract disputes, and numerous other business and real estate
issues. The Dreyfuss Firm attorneys have received the highest possible ratings (AV) for
legal expertise and ethics from Martindale Hubbell, the preeminent national resource for
attorney evaluations.
This is to be used as an educational guide only and should not be interpreted as a legal consultation. Laws
are subject to change and may apply differently to the facts of your specific situation. Readers act on this
information solely at their own risk. The author shall not have liability stemming from this article.